Paija (Migration)

[2021] AATA 2658

Paija (Migration) [2021] AATA 2658 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Srijana Paija

CASE NUMBER:  2016930

DIBP REFERENCE(S):  BCC2020/1413524

MEMBER:Anne Grant

DATE:10 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) (Tourist) (subclass 600) visa.

Statement made on 10 June 2021 at 12:34pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – application was made more than 28 days after the last substantive visa held by the applicant ceased – no unique or exceptional circumstances –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 379

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 3001

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 November 2020 to refuse to grant the applicant a Visitor (Tourist) (subclass 600) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 20 April 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case, the visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

2. The delegate refused to grant the applicant the visa because the application was made more than 28 days after the last substantive visa held by the applicant ceased.  The delegate found that therefore the applicant does not satisfy the requirements of PIC 3001 and cl. 602.223 and therefore could not be granted the visa.

1. The applicant appeared before the Tribunal by telephone on 8 June 2021 to give evidence and present arguments.  The applicant was not represented at the hearing.

2. The information and evidence before the Tribunal indicates that the applicant arrived in Australia on 11 July 2017 on a TU-500 Student visa with an expiry of 15 September 2019. The applicant was then granted another TU-500 Student visa on 18 October 2019 which ceased on 31 January 2020.    

3. In a submission made to the Tribunal in writing on 7 June 2021, the applicant included the following information:

   I am a citizen of Nepal and was born in Myagdi, Nepal on 13 March 1997.

   I was married to Mr. Roshan Bajracharya on 04 February 2016 in Nepal.

   I was granted a student dependent visa on 27 June 2017.

   On 10 July 2017, I first came to Australia with my spouse Mr. Roshan Bajracharya.

   My spouse was the primary visa student visa holder. We applied for our second student visa in September 2019, and it was granted on 18 October 2019.

   Then we applied for our third student visa on 24 January 2020. While the application was under process, my partner ended our relationship deceitfully. Then I had no choice other than withdrawing my visa application. Hence, I withdrew my student dependent visa application on 13 April 2020.

   Then I enrolled in Diploma of Early Childhood Education and Care course in Brisbane as that was the course I had always wanted to do. I was aiming to do that course after my partner completed his course. However, because my last student visa had expired more than 28 days ago, I was not eligible to make a valid student visa application.

   Alternatively, I applied for a Visitor (class FA) Visitor (Tourist) (subclass 600) visa on 20 April 2020. It was refused on 12 November 2020. They main reason for refusal was that I was holding a Bridging Visa C at the time and therefore, I could not meet Schedule 3 criteria.
   On 23 November 2020, I applied for a review of the refusal at the Tribunal and now the matter is before the Tribunal.

   Since 04 January 2021, I have been enrolled in Diploma of Early Childhood Education and Care at Queensland International Institute of Technology in Brisbane. I have a satisfactory academic progress in my course. I genuinely intend to study and complete this course and return to my country of origin. My goal is to work as a Child Care Worker, Educator and then as a Child Care Centre Manager in Nepal. With a few years of experience under my belt, I would then like to start my own Child Care Centre in Nepal. My parents are happy to invest.

   The reason why I was not holding a substantial visa at the time of lodging my visitor visa application was because my ex-spouse betrayed me and ended our relationship in the middle of the process of our visa application. I was deceived and cheated on. It came as a surprise and shock to me. While the relationship was still ongoing, he simply left me and walked out of our relationship with no explanation. Till date he is out of contact from me. Therefore, the reasons were compelling and beyond my control.

   I request the Tribunal to refer to the letter I had written and sent to the Department on 30 October 2020.

   I would like to continue my course and return to my home country once my course is complete.

   My parents are supportive of my decision to continue my study in Australia, and they have been providing me financial support till date and will continue to do so.

   If I were to return to my home country now, I would suffer serious and ongoing mental and psychological harm.

   I have always been a law abiding lawful non-citizen of Australia. The fact that I happened to be on a bridging visa C and not being able to meet Schedule 3 is unfair and the consequence has been unreasonable.

   Based on the information and evidence provided, I respectfully request the Tribunal to recommend the Minister to consider for Ministerial Intention on my matter.

4. The applicant confirmed that she made the present application for a visitor visa on 20 April 2020.   The applicant gave evidence that her TU-500 visas were ‘dependent spouse’ visas and her agreement with her husband was that once he had completed his studies, she would commence her own.  However, as outlined in her submission, he left her without warning right at the time the new visa was being renewed.  While the new visa was being considered, and before she withdrew that application due to the breakdown of her relationship, she was granted a bridging visa from 24 January 2020.  She only withdrew her student visa application shortly before applying for a visitor visa, but she was already 28 days past the expiry date of her substantive visa. The applicant gave evidence that she wants the opportunity to complete her Early Childhood studies that she has commenced in Brisbane so she can gain qualifications and experience to establish her own business in Nepal.  As noted in her submission, the applicant requested that the Tribunal recommend her matter to the Minister for intervention.  The applicant acknowledged that the visa application under review was lodged on 20 April 2020 which is more than 28 days after the TU-500 Student visa had expired. 

CONSIDERATION

1. Clause 602.223 of the Migration Regulations (attached at the end of this decision) applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, and the visa was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The applicant must also satisfy all of the criteria in Schedule 3 clauses 3001, 3003, 3004 and 3005. There is no discretion within this part of the legislation for a decision maker to waive or vary these requirements, regardless of the applicant’s circumstances.

2. The issue in this case is whether the applicant satisfies the criteria in 3001 and therefore the requirements in cl.602.223.

1. In the present case, the applicant did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403  visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision.

   Is criterion 3001 met?

1. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001(2), as set out in the attachment to this decision.  That is 28 days from the date that the applicant last held a substantive visa.

1. On the information before it, the Tribunal finds that the last substantive visa held by the applicant was a TU-500 Student visa which expired on 31 January 2020. The present application for a visitor visa was made on 20 April 2020.

1. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

1. For these reasons, the applicant does not satisfy cl.602.223.

1. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review will be affirmed.

   The request for referral for Ministerial Intervention

2. The Tribunal notes that the applicant’s marriage breakdown has caused (and continues to cause) her significant distress.   The Tribunal accepts that the personal disorder due to the marital breakdown (and the fact that it was occurred without notice to the applicant) has been the cause of her inability to lodge a visa in her own right within appropriate time frames.  When her relationship ended, and she consequently and necessarily withdrew her dependent spouse student visa application, she was already outside the statutory 28-day period. 

3. The Tribunal accepts that the COVID19 pandemic has made departure from Australia problematic over the past 18 months. However, the pandemic has affected temporary visa holders in Australia almost uniformly due to global travel restrictions, health concerns and the insecure nature of travel over this period.   Various arrangements and changes in policy by Australia’s migration authorities have enabled temporary visa holders and applicants for new visas to successfully manage their migration status during the pandemic.   In the applicant’s case, however, the Tribunal considers that the pandemic did not have any real impact on the applicant’s failure to lodge her application for a visa within the required time frame – the Tribunal considers that the ordinary operation of the visa renewal process and the coinciding breakdown of her relationship were the prime causes of her inability to lodge her own visa application within time.  The Tribunal also notes that (as the applicant confirmed) she could have returned to Nepal and applied for a student visa offshore in her own right when her student visa application was withdrawn.  It is noted that she has chosen not to do so up to the date of the hearing because she felt that doing so would take an emotional toll on her, particularly in circumstances where the pandemic is still wreaking havoc in Nepal, as well as globally. 

4. As discussed with the applicant at hearing, the Tribunal has considered the Minister’s Guidelines on ministerial powers and notes that it is generally expected that a person with no visa leave Australia, and that the intervention process is not an extension of an unsuccessful visa application process.  Further, Ministerial intervention would not generally be considered where the applicant has another visa pathway including an offshore pathway.   According to the guidelines, the Minister will generally only consider the exercise of the public interest powers in cases which exhibit one or more unique or exceptional circumstance(s).[1]

   [1] Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016) at [4].

5. Whilst accepting the applicant’s account of her reasons for lodging her visa application after 28 days from expiry of her substantive visa, the Tribunal does not consider that a relationship breakdown is appropriately considered an unusual or compelling circumstance which merits consideration of intervention by the minister.  The Tribunal is not satisfied that there are unique or exceptional circumstances in the applicant’s case.  

6. The Tribunal has considered the applicant’s request but has decided not to refer this case to the Minister with a recommendation that it be considered for Ministerial intervention.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) Visitor (Tourist) (subclass 600) visa.

Anne Grant  Member

ATTACHMENT

Migration Regulations 1994

Schedule 2

600.223

(1)  If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

(2)  If the applicant was in Australia at the time of application, and did not hold a substantive visa:

(a)  the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; and

(b)  the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

Schedule 3

3001(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2)    For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

(c)if the applicant:

(i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii)     entered Australia unlawfully on or after 1 September 1994; whichever is the later of:

(iii)the last day when the applicant held a substantive or criminal justice visa; or

(iv)the day when the applicant last entered Australia unlawfully; or

(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

(i)the day when that last substantive visa ceased to be in effect; and

(ii)the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

…

3003 If:

(a)    the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

(b)   on 31 August 1994, the applicant was either:

(i)an illegal entrant; or

(ii)   the holder of an entry permit that was not valid beyond 31 August 1994; the Minister is satisfied that:

(c)    the applicant last became an illegal entrant, or, in the case of a person referred to in

subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and

(d)   there are compelling reasons for granting the visa; and

(e)    the applicant has complied substantially with the conditions that apply or applied to:

(i)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(ii)any subsequent bridging visa; and

(f)    the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

(g)   the applicant intends to comply with any conditions subject to which the visa is granted; and

(h)   the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

3004 If the applicant:

(a)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(b)   entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

the Minister is satisfied that:

(c)    the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

(d)   there are compelling reasons for granting the visa; and

(e)    the applicant has complied substantially with:

(i)the conditions that apply or applied to:

(A)     the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(B)     any subsequent bridging visa; or

(ii)the conditions that apply or applied to:

(A)     the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

(B)     any subsequent bridging visa; and

(f)    either:

(i)in the case of an applicant referred to in paragraph (a)—the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii)in the case of an applicant referred to in paragraph (b)—the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g)   the applicant intends to comply with any conditions subject to which the visa is granted; and

(h)   if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

(a)    this Schedule; or

(b) Schedule 6 of the Migration (1993) Regulations; or

(c)    regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non-citizen when he or she was born shall be taken to have entered Australia when he or she was born.